In re C.L., Juvenile

In re C.L., Juvenile (2004-362); 178 Vt. 558; 878 A.2d 207

2005 VT 34

[Filed 15-Mar-2005]

                                 ENTRY ORDER

                                 2005 VT 34

                      SUPREME COURT DOCKET NO. 2004-362

                             JANUARY TERM, 2005


  In re C.L., Juvenile	               }	APPEALED FROM:
                                       }
                                       }
        	                       }	Chittenden Family Court
                                       }
                                       }	DOCKET NO. 503-10-02 Cnjv

                                                Trial Judge: David A. Jenkins

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Father appeals from a family court order terminating his
  parental rights to the minor C.L.  He contends the court committed
  reversible error because the evidence failed to show that either: (1) he
  was an unfit parent; or (2) granting him custody would be contrary to the
  child's best interests. We affirm. 

       ¶  2.  C.L. was born on October 31, 2002.  The Department of Social
  and Rehabilitation Services (now known as the Department for Children and
  Families, or DCF) immediately took custody of C.L. and placed her in a
  foster home, where she has remained to this day.  Mother's oldest  child
  resides with her father. The middle child, T.L., was already in DCF custody
  at the time of C.L.'s birth as a result of mother's on-going substance
  abuse, mental health, and parenting problems.  Mother voluntarily
  relinquished her parental rights to T.L. in January 2003.  Her parental
  rights to C.L. were terminated in July 2003.  C.L. was then nine months
  old.

       ¶  3.  The identity of C.L.'s father was initially unknown, although
  one man identified by mother as the putative father had been tested and
  proven not to be the biological father. K.L. (hereafter "father") testified
  that he ran into mother around the time of her termination hearing in July
  2003, and learned for the first time about C.L.'s existence and that he
  might be the father.  Father had known mother for nearly twenty years. 
  They had been involved romantically many years earlier, for a period of six
  months to one year, and renewed their sexual relationship in 2002.  Father
  acknowledged that he had contact with mother on two or three occasions
  after C.L. was conceived, but claimed that she never told him about the
  pregnancy.  After learning about C.L, father contacted DCF, which scheduled
  a paternity test for September 2003.  Father failed to appear for the test
  (he later claimed not to have received notice), and a second test was
  scheduled for October.  The results showed him to be the biological father.  
   
       ¶  4.  At a status conference on November 14, 2003, two weeks after
  the test results, father's attorney informed the court that father had  met
  C.L. and the foster mother, and that there had been some discussion about
  working things out "so that [C.L.] is free for adoption." Accordingly,
  counsel suggested continuing the matter for thirty days "to resolve the
  matter amicably."  At the rescheduled conference in December, however, the
  court learned that father had apparently changed his mind, and now wanted
  custody of C.L.  

       ¶  5.  A one-day termination hearing was held in February 2004. 
  C.L. was then almost sixteen months old.  As noted, father testified that
  he was unaware of C.L. for about nine months. Father acknowledged that he
  had offered no financial or other support to C.L. after learning of the
  child, but asserted that he had "mentioned" to his lawyer that he was
  "willing to pay child support."  Prior to the hearing, father had two
  one-hour visits with C.L. and her foster mother.  From his observations
  during these visits, father concluded that the two had "a mother-daughter
  relationship." He also conceded that C.L.'s foster parents appeared to have
  taken extremely good care of her, that it would take six months to one year
  for C.L. to adjust to a change of custody, and that it was not in C.L.'s
  best interests to separate from the only parents she had ever known. Under
  further examination by his own attorney, father amended his testimony to
  claim that a change of custody would be in C.L.'s best interests.  Father
  testified that he was ready and able to assume parental responsibilities. 
  Although he has a lengthy criminal record-including convictions of unlawful
  mischief, disorderly conduct, retail theft, and simple assault-father
  claimed to have attained a stable lifestyle; he had recently been given
  custody of his two young children by his former girlfriend, and owned a
  taxi service. 

       ¶  6.  The minor's DCF social worker also testified. She stated that
  the child was thriving in her foster home, was deeply attached to her
  foster parents and their two older children, whom she viewed as her
  siblings, and would be emotionally traumatized by a change of custody.  The
  social worker had observed that the foster parents provided a loving home,
  attended diligently to C.L.'s special medical needs, which included an
  allergy to all dairy products, and hoped to adopt the child.  

       ¶  7.  At the conclusion of the hearing, the trial court indicated
  that it wished to hear from an expert concerning the potential impact of a
  move on a child of C.L.'s age, and the parties agreed to have a
  court-appointed expert provide such an opinion. A pediatrician specializing
  in child development submitted a written statement to the court in March
  2004.  The expert stated that a child of C.L.'s age would have formed a
  strong attachment to her parents, and opined that a change of custody from
  the only parents a child has known since birth would put the child at
  longterm emotional risk and could lead to depression, developmental delay,
  and disruptive behavior.  
 
       ¶  8.  The court issued a written decision in July 2004.  The court
  found that father had  overcome his past difficulties, was ably parenting
  two children from another relationship, and had the skills and desire to
  parent C.L.  Nevertheless, the court noted that C.L. was nearly two years
  old and had virtually no relationship with father or his family; that C.L.
  was deeply attached to the only parents and siblings she had ever known;
  and that any change of custody would cause long lasting emotional damage to
  C.L. resulting from the loss of her family.  Applying the statutory factors
  set forth in 33 V.S.A. § 5540, the court found that C.L. was bonded with
  her foster family, with whom she had a close, loving relationship; that she
  was fully adjusted to her home, school, and community; that father had
  played no role in her life; and that father could not resume parental
  responsibilities within a reasonable period of time, as any attempted
  transition would be emotionally devastating to C.L, and the time required
  for any such change would be unreasonably lengthy measured in terms of the
  child's needs.  Accordingly, the court concluded that termination of
  father's parental rights was in the best interests of the child, and
  granted the State's petition.  This appeal followed.
   
       ¶  9.  Father contends that termination was improper absent an
  express finding of parental unfitness.  The claim raises broader questions
  concerning the interests of otherwise fit biological fathers who, through
  ignorance of a child's existence, have established virtually no personal,
  custodial, emotional, or financial relationship with the child during its
  early development.  The rights of unwed biological fathers have a
  constitutional as well as a statutory dimension. We have addressed both
  dimensions in only one modern case, In re S.B.L., 150 Vt. 294, 553 A.2d 1078 (1988), a guardianship contest between the maternal grandparents of a
  child born out of wedlock and her biological father (the mother had died in
  an automobile accident).  Although we construed the relevant statutory
  scheme as creating no "preference in favor of the natural father of a child
  born out of wedlock," id. at 301, 533 A.2d  at 1083,  we also recognized
  that the United States Supreme Court -in a series of decisions culminating
  with Lehr v. Robertson, 463 U.S. 248 (1983)-had accorded unwed biological
  fathers certain due process protections under the federal constitution.
  Lehr involved a New York adoption statute that gave notice of adoption
  proceedings to unwed biological fathers in certain limited circumstances,
  including situations where the father was identified on the birth
  certificate, had lived with the mother and child, or had registered with a
  "putative father registry."  The plaintiff in Lehr qualified under none of
  these, failed to receive notice of his child's adoption at the age of two,
  and challenged the statute on due process and equal protection grounds. 
  The high court concluded that due process accorded an unwed biological
  father only a limited "opportunity" interest.  As the Court explained: 

         When an unwed father demonstrates a full commitment to the
    responsibilities of parenthood by coming forward to participate in
    the rearing of his child, his interest in personal contact with
    his child acquires substantial protection under the Due Process
    Clause.  At that point it may be said that he acts as a father
    toward his children.  But the mere existence of a biological link
    does not merit equivalent constitutional protection.    

         The significance of the biological connection is that it
    offers the natural father an opportunity that no other male
    possesses to develop a relationship with his offspring.
   
  463 U.S.  at 261-62 (internal quotation marks and citations omitted). 
  Because the father in Lehr had not participated in the rearing of his
  child, the Court concluded that he had no cognizable due process interest. 
  As for the equal protection claim, the Court held that a mother and father
  are similarly situated only if both have "established any custodial,
  personal, or financial relationship" with the child, and that a father who
  had "either abandoned or never established" such a relationship was not
  subject to invidious discrimination.  Id. at 267-68.    
   
       ¶  10.  Numerous state court decisions since Lehr have explored, in a
  variety of contexts, the circumstances sufficient to demonstrate that an
  unwed biological father has grasped the "opportunity" to develop a
  relationship with his offspring.  See generally L. Oren, The Paradox of
  Unmarried Fathers and the Constitution: Biology "Plus" Defines
  Relationships; Biology Alone Safeguards the Public Fisc, 11 Wm. & Mary J.
  Women & L. 47 (2004); D. Meyer, Family Ties: Solving the Constitutional
  Dilemma of the Faultless Father, 41 Ariz. L. Rev. 753, 762-76 (1999);
  Comment, Who's Your Daddy?: State Adoption Statutes and the Unknown
  Biological Father, 32 Cap. U. L. Rev. 113, 127-40 (2003). Relying on Lehr's
  observation that strict compliance with the requirements of the New York
  putative father registry promoted the state's interest in ensuring
  "promptness and finality" to the process of finding the child a permanent
  and stable placement, 463 U.S.  at 266,  most courts and commentators have
  concluded that the "opportunity interest" must be grasped promptly, both
  before and after the child's birth, or it will be lost.  See, e.g.,
  Adoption of Kelsey S., 823 P.2d 1216, 1236-37 (Cal. 1992) ("The father's
  conduct both before and after the child's birth must be considered.  Once
  he knows or reasonably should know of the pregnancy, he must promptly
  attempt to assume his parental responsibilities .  . . ."); Matter of
  Raquel Marie X., 559 N.E.2d 418, 425 (N.Y. 1990) ("[A] father who has
  promptly taken every available . . .  opportunity to enter into the fullest
  possible relationship with his under-six-month child should have an equally
  fully protected interest in preventing termination of the relationship by
  strangers."); In re Baby Boy K., 1996 SD 33, ¶ 43, 546 N.W.2d 86
  ("Because children require early and consistent nurturing of their
  emotional as well as physical needs, an unwed father must act quickly to
  grasp the opportunity interest in his biological child."); E. Buchanan, The
  Constitutional Rights of Unwed Fathers Before and After Lehr v. Robertson,
  45 Ohio St. L. J. 313, 364 (1984) ("Th[e] need for early assurance of
  permanence and stability is an essential factor in the constitutional
  determination of whether to protect a parent's relationship with his or her
  child.  The basis for constitutional protection is missing if the parent
  seeking it does not take on parental responsibilities timely."). 

       ¶  11.  Thus, where the biological father is not only unwed, but also
  for some period of time unknown, courts have not hesitated to conclude that
  the father's ignorance will not excuse a belated failure to act.  As the
  New York Court of Appeals has explained:

         To conclude that petitioner acted promptly once he became
    aware of the child is to fundamentally misconstrue whose timetable
    is relevant.  Promptness is measured in terms of the baby's life
    not by the onset of the father's awareness.  The demand for prompt
    action by the father at the child's birth is neither arbitrary nor
    punitive, but instead a logical and necessary outgrowth of the
    State's legitimate interest in the child's need for early
    permanence and stability.

  Robert O. v. Russell K., 604 N.E.2d 99, 103-104 (N.Y. 1992).  Noting that
  "[n]o one, . . .  let alone  any State actor, prevented petitioner from
  finding out about [the] pregnancy," the New York court held that the
  mother's failure to inform the father about the child until it was nearly
  eighteen months old did not entitle him to invalidate the child's adoption. 
  Id. at 104-105.      
          
       ¶  12.  Since Lehr, numerous courts have concluded that it is the
  father's burden to discover the existence of his child, even if he had no
  notice of the pregnancy or birth, or risk losing the opportunity to
  transform a biological link into a full and enduring parental relationship. 
  In re S.J.B., 745 S.W.2d 606, 607 (Ark. 1988) (although father was unaware
  of his child, notice of adoption proceeding was not constitutionally
  required where "biological father was not interested enough in the outcome
  of his sexual encounter . . . to even inquire concerning the possibility of
  her pregnancy"); In re Zachariah D., 862 P.2d 751, 762-63 (Cal. 1993)
  (biological father unaware of paternity until child was fifteen months old
  was not constitutionally entitled to reunification services); In re Tinya
  W., 765 N.E.2d 1214, 1218 (Ill. App. Ct. 2002) (court properly found father
  unfit based on failure to provide any financial or emotional support to
  child despite father's lack of awareness of his paternity); In re Baby Doe,
  734 N.E.2d 281 (Ind. Ct. App. 2000) (state's interest in child's early
  permanent placement precluded father from contesting adoption where he was
  unaware of paternity and failed to timely file with putative father
  registry).

       ¶  13.  The rationale of the holdings in these cases is powerfully
  summarized by the court in In re Baby Boy K., 1996 SD 33, ¶ 53, as
  follows: 

         When a putative father is ignorant of his parenthood due to
    his own fleeting relationship with the mother and her
    unwillingness to later notify him of her pregnancy, the child
    should not be made to suffer.  The trial court in this case was
    faced with a child who was unwanted by his mother and unknown to
    his father. . . . [Father's] assertion . . .  that Mother should
    have told him if he happened to father a child, cannot overcome
    the State's fully matured interest in protecting the child's
    permanent home.     

       ¶  14.  To be sure, these decisions arise out of statutory schemes
  that expressly decline to provide full presumptive parental rights to unwed
  biological fathers. Vermont's termination-of-parental-rights statute,
  however, does not fall within this category. It provides, rather, that in
  deciding whether termination is in the best interests of the child, the
  court must consider a number of factors affecting the child and the
  "natural parents," 33 V.S.A. § 5540(1), (3) &(4), thus signaling an intent
  to accord all biological parents, regardless of gender or marital status,
  the same significant legal protections.  See  In re J.B., 167 Vt. 637, 639,
  712 A.2d 895, 897 (1998) (mem.) ("Vermont law makes plain that a family
  court may terminate parental rights only when it finds by clear and
  convincing evidence that to do so in in the best interests of the child . .
  . . "); 33 V.S.A. § 5501(a)(3) (purpose of child  protection law is to be
  achieved "whenever possible, in a family environment, separating the child
  from his parents only when necessary for his welfare or in the interests of
  public safety").      
        
       ¶  15.  Lehr and its progeny are instructive, nevertheless, in
  helping to identify the unique concerns that arise in a case where the
  State seeks to terminate the parental rights of a recently discovered
  father whose only link to a child is biological.  For regardless of the
  nature of the statutory scheme or the father's legal rights, the facts in
  such a case are manifestly unlike those where-as often happens-a state
  agency has taken custody of a child from birth and placed it in a foster
  home, while simultaneously working with the natural parents toward
  reunification. There, the efforts of the parents-under state auspices-to
  achieve a custodial, emotional, and financial relationship with the child
  stand in sharp contrast to those of a father who has made virtually no such
  effort, and whose absence is the result not of any action by the State, or
  misrepresentation by the mother, but simply his own indifference.  As the
  record here makes clear, this is not a case where an isolated sexual
  encounter made it highly unrealistic to expect that father could have
  reasonably discovered his paternity. The evidence showed that father had
  known mother for many years, had been previously involved with her
  romantically, and had met her on several occasions after their renewed
  sexual relationship. There was no evidence that mother had willfully
  concealed or misrepresented father's paternity.  There is no reason to
  believe, therefore, that even a minimal level of interest would not have
  alerted father to the fact of mother's pregnancy and the possibility that
  he was the father.  

       ¶  16.  Nor is this a case where a previously unknown father-upon
  discovery of his paternity-makes every reasonable effort, at the earliest
  possible date, to seize the opportunity to establish a parental
  relationship.  Father missed his initial paternity test, expressed an
  initial interest in voluntarily relinquishing his parental rights, and
  delayed for two months after discovering his paternity to assert any
  custodial rights.   For a child in these circumstances, any delay is
  critical.  See  In re Zachariah D., 862 P.2d  at 763 (although child in
  normal circumstances may not be irrevocably harmed where father waits for
  months to inquire into existence of children that may have resulted from 
  sexual encounter, "a child in the dependency system requires a more
  time-critical response"). 
          
       ¶  17.  Considered against this legal and factual backdrop, father's
  claim that the trial court erred in terminating his parental rights absent
  a specific finding of parental unfitness is unpersuasive.  Although the
  trial court found that father was ably parenting two children from another
  relationship, and possessed the skills to parent C.L., it observed,
  correctly, that the paramount concern was father's ability to resume his
  parental responsibilities for C.L. within a reasonable period of time,
  measured from the perspective of the child's needs. See In re A.D.T., 174
  Vt. 369, 376, 817 A.2d 20, 26 (2002) (parent's ability to resume parental
  responsibilities within reasonable time is most important of statutory
  factors governing termination of parental rights); In re B.S., 166 Vt. 345,
  353, 693 A.2d 716, 721 (1997) (reasonableness of time period for resuming
  parental responsibilities "must be viewed from the perspective of the needs
  of the child"). While acknowledging that the result was regrettable, the
  court found that father could not assume parental responsibilities for C.L.
  within a reasonable period of time, in view of the fact that he was a
  virtual stranger to the child, having established no personal or emotional
  connection with her; that C.L.'s foster parents and their two other
  children were literally the only family C.L. had ever known; and that any
  attempted transition of custody to father would require an unreasonably
  lengthy period of time measured from the child's perspective, and would
  cause lasting emotional damage to the child from the perceived loss of her
  family.  

       ¶  18.  Contrary to father's assertion, the court's ruling was not,
  in any sense, an unfair and disfavored comparison between the child's
  psychological attachment to her biological and foster parents. Cf. In re
  E.B., Jr. & J.B., 158 Vt. 8, 12, 603 A.2d 373, 376 (1992 ) (parental rights
  cannot be terminated "simply because a child might be better off in another
  home"); In re J. & J.W., 134 Vt. 480, 484, 365 A.2d 521, 524 (1976)
  (termination must be based on more than simply the "loss of psychological
  parent relationship between natural parent and child").  As we said in In
  re B.M., 165 Vt. 331, 342, 682 A.2d 477, 483 (1996), "[t]his is not a case
  in which the State disrupted a parent-child relationship by removing the
  child from the home, and then argued that the subsequent weakening of the
  parent-child bond should be grounds for termination." There was no forcible
  removal here, and father and child had never developed any relationship
  that could be disrupted.  

       ¶  19.  In these circumstances, therefore, we discern no error in the
  court's failure to render a specific finding that father was unfit to
  parent C.L. The trial court's focus was properly on the future of the
  parent-child relationship, and its finding that father could not resume his
  parental role within a reasonable period of time, measured from the
  perspective of the child's needs, was amply supported.  See In re E.B., Jr.
  & J.B., 158 Vt. at 13, 603 A.2d  at 376-77 (court did not err in failing to
  make specific finding of parental unfitness where findings "clearly
  indicate[d]" that parents were incapable of resuming parental
  responsibilities within a reasonable period of time). 

       ¶  20.  Father also contends the evidence was insufficient to support
  the court's finding that a change of custody would cause lasting emotional
  damage to C.L.  He grounds the claim on the fact there was no psychological
  evaluation of C.L. herself, only the expert's written statement concerning
  the effect generally of such a change.  While father is correct that the
  focus of the court's inquiry must be on the individual child in question,
  we do not agree that a psychological evaluation was absolutely necessary to
  support the court's finding.  The social worker's observation of C.L.'s
  deep emotional attachment to her foster family and conclusion, based on her
  experience, that a change would traumatize C.L., coupled with the expert's
  opinion that such a change has generally been found to be emotionally
  scarring, was sufficient to support the finding. See In re B.M., 165 Vt. at 
  201, 679 A.2d  at 896 (family court's findings will be upheld if supported
  by credible evidence).  Accordingly, we discern no basis to disturb the
  court's finding, or its decision that termination was in the best interests
  of the child.

       Affirmed.  
   


                                       BY THE COURT:


                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.),
                                       Specially Assigned